14-004279 Sarasota County School Board vs. Harvey Dorey Status: Closed Recommended Order on Tuesday, December 23, 2014.

Summary: Petitioner failed to prove that employee in jail under substantial bond awaiting trial on two felony lewd and lascivious counts is wilfully absent without leave or his failure to self report arrest known to his supervisors is gross insubordination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 4279

HARVEY DOREY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On November 12, 2014, Robert E. Meal e, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing in Sarasota, Florida.

APPEARANCES

For Petitioner: Robert K. Robinson, Esquire

Kirk Pinkerton

240 South Pineapple A venue, 6 th Floor

Sarasota, Florida 34236

For Respondent: Jordan L. Wallach, Esquire

Jordan L. Wallach, P.A.

1800 2nd Street, Suite 900

Sarasota, Florida 34236

STATEMENT OF THE ISSUE S

The issues are whether Petitioner may terminate Respondent's

employment as a school psychologist because he is willfully

absent without leave from his job, pursuant to section 1012.67,

Florida Statutes, or because he was grossly insubordinate in

failing to self - report a criminal arrest, pursuant to

section 1012.33(1)(a), Florida Statutes, and Florida

Administrative Code Rules 6A - 5.056(4) and 6A - 10.081(5)(m).

PRELIMINARY STATEMENT

By letter dated August 25, 2014, Petitioner's Superintendent

advised Responde nt that he had abandoned his job by failing to

report for duty since he had been arrested five days earlier and

was guilty of insubordination by not self - reporting the arrest

within 48 hours. The letter states that the Superintendent was

recommending that the School Board terminate Respondent's

employment. By letter dated September 3, 2014, Respondent

requested a formal hearing.

By letter dated October 14, 2014, the Superintendent

supplemented her letter of August 25 by adding that the failure

to self - rep ort was "grossly insubordinate." The October 14

letter states that Respondent would remain suspended without pay

until further notice.

At the hearing, Petitioner called three witnesses and

offered into evidence 20 exhibits: Petitioner Exhibits 1

through 3 and 17 through 33. Respondent called two witnesses and

offered into evidence two exhibits: Respondent Exhibits 1 and 2.

All exhibits were admitted, but Petitioner Exhibits 18 and 21

through 23 were not admitted for the truth.

The court reporter file d the transcript on December 4, 2014.

Petitioner filed a proposed recommended order on December 4, and

Respondent filed a proposed recommended order on December 15.

FINDING S OF FACT

1. Petitioner has employed Respondent as a school

psychologist for at le ast ten years. Working under an 11 - month

contract for the 2014 - 15 school year, Respondent's first day of

duty was in late July, about one month prior to the students'

return to school.

2. It appears that Respondent duly reported for work at the

appoint ed time and assumed his assigned duties. However, on

August 20, 2014, Respondent was arrested by a sheriff's deputy

for the felonies of lewd and lascivious behavior and lewd and

lascivious conduct with a minor.

3. The arrest took place during the schoo l day at North

Port High School. To avoid disrupting the school's operation any

more than was necessary, the principal, deputy, and school

resource officer coordinated the arrest so that Respondent

presented himself for arrest in the front of the school.

Respondent did so, and the arrest took place without incident.

4. After taking Respondent into custody, the deputy

transported Respondent to the Sarasota County jail, where he has

remained continuously since August 20 through the date of the

hearing in t his case. Respondent has not waived his right to a

speedy trial, and his trial is presently set for early

February 2015.

5. The Sarasota Herald Tribune published a story of the

arrest in its online edition by 2:00 p.m. on August 20. The

story states th at Respondent had been arrested for molesting a

girl on multiple occasions in 2013 while the child, who was 14

and 15 years old at the time of the alleged incidents, lived in a

therapeutic foster home that Respondent and his then - wife had

operated. The st ory notes that Respondent was charged with lewd

or lascivious molestation and lewd or lascivious conduct and was

being held on $100,000 bond. Another story appeared in the

Sarasota Herald Tribune newspaper on the following day and

essentially repeated the facts reported in the online story.

6. On the day of the arrest, the sheriff's office faxed to

Petitioner a memorandum of an arrest of an employee of

Petitioner. The memorandum identifies Respondent as the arrestee

and the charges as violations of sec tions 800.04(5)(c)2. , Florida

Statutes , for a "sex offense against child fondling victim 12 YOA

to 16 YOA offender 18 YOA or older" and 800.04(6)(a)1. for a "sex

offense against child person over 18 yrs on child less than 16

yrs old."

7. Respondent has never self - reported the arrest. However,

within 48 hours of the arrest, the principal of North Port High

School and Respondent's immediate supervisor in the District

office knew all of the information concerning the arrest that

would have been included in the self - reporting form that

Petitioner has disseminated for self - reporting arrests.

8. As indicated in the August 20 online newspaper article,

bond was initially set at $100,000 for the two offenses, but was

later doubled. The record permits no finding as to why

Respondent has not posted bond himself or through the services of

a limited surety; in particular, the record provides no basis for

finding that Respondent has the financial capacity to pay the

bond or, if using the services of a limited surety, pay the bond

premium and post any security required by a surety.

9. Based on the foregoing, the sole factual grounds

supporting Petitioner's abandonment claim are his arrest and

ensuing pretrial incarceration.

CONCLUSIONS OF LAW

10 . DOAH has jurisdictio n over the subject matter.

§§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla. Stat.

11. Section 1012.67 provides: "Any district school board

employee who is willfully absent from duty without leave shall

forfeit compensation for the time of such absenc e, and his or her

employment shall be subject to termination by the district school

board."

12. Section 1012.33(1) requires that all professional

service contracts with instructional staff 1 /

shall contain provisions for dismissal during

the term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, . . . gross

insubordination, willful neglect of duty, or

being convic ted or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

13. Petitioner bears the burden of proving the material

allegations by a preponderance of the evidence. Dileo v. Sch.

B d . of Dade C nty . , 569 So. 2d 883 (Fla. 3d DCA 1990).

14. In general, a school board may terminate a professional

service contract of an instructional employee by proving that the

employee is "willfully absent without leave" under

section 1012.67, just cause under section 1012.33, 2/ or a failure

to correct performance deficiencies under section 1012.34(4).

The first two of these grounds for termination are at issue in

this case.

15. The basis for terminating an employee willfully absent

without leave does n ot fall within the just - cause provisions of

section 1012.33, so a termination under section 1012.67 does not

require a showing of just cause. To prove willful absence,

Petitioner must prove, first, an absence. Pursuant to the

collective bargaining agreem ent, Petitioner may terminate the

contract of an instructional employee who has been willfully

absent without leave for three consecutive workdays. 3/ Petitioner

took action to terminate Respondent on the fourth workday

following his incarceration. Second , Petitioner must prove that

the absence is without leave. Respondent has not obtained

approved leave of any sort for this absence.

16. Lastly, Petitioner must prove that the absence is

willful. This case presents the narrow question of whether an

arr est and pretrial incarceration for several months supply the

requisite willfulness for a finding of willful absence without

leave.

17. Petitioner argues for willful absence because the

arrest and incarceration, without more, obviously prevent

Respondent from performing his duties. In response to

Respondent's arguments against a constructive abandonment on the

basis of the insubstantiality of the grounds required for an

arrest, Petitioner counters that Respondent's arrest was not

arbitrary, but that Resp ondent "did something" to warrant his

arrest.

18. The Administrative Law Judge presumes that Respondent's

arrest and ongoing detention are lawful in all regards, 4/ but the

only determination thus far is "reasonable suspicion" 5/ that

Respondent committed the two offenses with which he has been

charged. This "something" is too insubstantial a basis for a

finding of willful absence from the job. The determination of

"reasonable suspicion" underlying the issuance of the arrest

warrant does not resemble a d etermination of just cause for

termination under section 1012.33(1)(a). Termination for just

cause under section 1012.33(1)(a) requires prior notice to

Respondent, full discovery, and an evidentiary hearing with the

usual rules of evidence before a disint erested adjudicator, all

as provided by chapter 120, Florida Statutes. To find a willful

absence on these facts is to circumvent the provisions of section

1012.33 by confusing a constructive abandonment with an actual

abandonment. Compare Jenkins v. De pÓ t of HRS , 618 So. 2d 749

(Fla. 1st DCA 1993) (en banc):

[w]hile a true abandonment of a state job is

tantamount to a voluntary resignation, a

constructive abandonment that is "neither

intended nor reasonably to be expected by the

employee, has the indici a of a termination

for cause which would invoke PERC's exclusive

jurisdiction over dismissals."

Id. at 753 (citing Tomlinson v. De pÓ t of HRS , 558 So. 2d 62, 65

(Fla. 2d DCA 1990)).

19. More directly, in Hawkins v. State , 138 So. 3d 1196

(Fla. 2d DCA 201 4), a defendant had entered a plea agreement that

required him to pay restitution. The court furloughed the

defendant to allow him to earn the money required for restitution

and ordered him to reappear in court with the restitution money

for sentencing. While on furlough, the defendant was arrested in

another jurisdiction on new charges and incarcerated prior to

trial, so he missed his court date for restitution and

sentencing. Although the new charges were later nolle prossed,

the trial court that had f urloughed him found that the defendant

had committed a "voluntary volitional act" by getting arrested

and thus had "willfully" failed to appear as required by court

order.

20. The appellate court reversed, stating that :

an "'[a]rrest' is an action by a police

officer based on that officer's evaluation of

probable cause, not a willful action of the

defendant." Neeld v. State, 977 So. 2d 740,

744 n.6 (Fla. 2d DCA 2008); see also

Schwingdorf v. State, 16 So. 3d 835, 836

(Fla. 2d DCA 2009) (quoting Neeld f or the

foregoing proposition). Thus a defendant's

"arrest, standing alone, is insufficient to

establish [his] willful violation of" a

furlough agreement conditioned on his

appearance at sentencing when the arrest

prevents the defendant from attending.

Sch wingdorf, 16 So. 3d at 836.

138 So. 3d at 1200.

21. In Parker v. Departmen t of Labor and Employment

Security , 440 S o. 2d 438 (Fla. 1st DCA 1983), the court reversed

a final order of the Unemployment Appeal s Commission, holding

that a 26 - day pretrial inca rceration, which ended when the state

dropped the charges, did not mean that the incarcerated employee

had voluntarily left his employment, so as to relieve the

employer of the burden of paying unemployment compensation

benefits. In dictum, the court caut ioned, "[t]here will

undoubtedly be circumstances where an employee's pre - trial

incarceration may reach the point where he ought to be considered

as having abandoned his employment," but provided no guidance as

to what these circumstances might be, other t han evidently the

duration of pretrial incarceration. Id. at 439.

22. In the face of this case law, Petitioner relies on four

administrative final orders 6/ to support its argument that a

pretrial arrest and incarceration constitutes a willful absence.

In Stokes v. Choice , 1990 Fla. Div. Adm. Hearing LEXIS 6881

(1990), the school board determined that an instructional

employee was willfully absent without leave 7/ while in pretrial

incarceration following his arrest for passing two worthless

checks. At t he time of the hearing, the employee had been

incarcerated for 19 days, of which 12 days were work days;

however, the employee obtained approved leave for six days, so he

had missed six days without leave.

23. In School Board of Miami - Dade County, Flori da v.

Patricia A. Holmes , Case No. 02 - 2820 ( Fla. DOAH Dec. 10, 2003), 8/

the school board determined that a noninstructional employee was

guilty of "excessive absenteeism" evidently, willful absence

without leave -- after she had been incarcerated for seven months

following a determination that she had violated a condition of

probation for domestic violence. Exacerbating an already

precarious situation, upon release from jail, the employee

refused to report for work for an additional month so as not to

jeop ardize her claim for unemployment compensation benefits.

24. In Lee County School Board v. Joseph Simmons , Case

No. 03 - 1498 ( Fla. DOAH Jul. 15, 2003), 9/ a noninstructional

employee was arrested for aggravated battery, false imprisonment,

and multiple c ounts of aggravated assault with a deadly weapon.

He remained incarcerated from January 29 through March 5, 2003.

At this time, the employee was released pending trial on false

imprisonment and one count of aggravated assault with a deadly

weapon, the re maining charges having been dropped. On March 6,

the school district conducted a predetermination conference where

the employee gave his version of the events that led to his

arrest. The collective bargaining agreement provided for

termination for "any a bsence" from duty without leave, but the

final order also cites section 1012.67, which requires a "willful

absence" without leave, and the final order draws no distinction

between these two provisions. Ultimately, citing Holmes and

Choice , supra , the fina l order determined that the arrest and

pretrial incarceration satisfied the requirement of "willful

absence" under section 1012.67 because, citing Choice , the

employee "'willed the series of acts which set in motion the

chain of events which eventually res ulted in his incarceration.'"

25. In Broward County School Board v. Lindstrand , Case

No. 13 - 1489 (Fla. DOAH Oct. 17, 2013; Fla. Sch. Bd. of Broward

Cnty. Feb. 14, 201 4 ), 10/ an instructional employee was arrested

for driving under the influence. The tria l was set for February

27 and 28, 2013, and the employee requested and obtained leave

for February 26 through March 1. At the conclusion of the trial,

the employee was sentenced to six weeks' incarceration, starting

immediately. After three days' absence without leave, pursuant

to school board policy, Petitioner advised Respondent that she

would be terminated for willful absence without leave under

section 1012.67. Citing Simmons , Holmes , and Choice , the final

order terminated Respondent on the ground of willful absence

without leave and without consideration of various just - cause

allegations.

26. Holmes and Lindstrand are distinguishable as involving

post - conviction incarcerations. Holmes is also distinguishable

on the ground that the employee refused to report back to work

for one month after her release from custody in an effort to

preserve a claim for unemployment compensation.

27. Choice and Simmons involve pretrial incarcerations and

are not distinguishable from the present case. However, these

administrative final orders contain no discussion of any case law

and are of little, if any, precedential value, especially in

light of the subsequent case law identified above.

28. Rule 6A - 10.081(5)(m) requires that an employee self -

report, within 4 8 hours, any arrest involving the abuse of a

child. Clearly, this rule applies to the present arrest for lewd

and lascivious behavior and lewd and lascivious conduct with a

minor. Equally clearly, Respondent has never self - reported his

arrest.

29. Peti tioner has alleged that Respondent's failure to

self - report his arrest constitutes "gross insubordination" under

section 1012.33(1)(a). Under r ule 6A - 5.056(4), "gross

insubordination" is:

the intentional refusal to obey a direct

order, reasonable in natur e, and given by and

with proper authority; misfeasance, or

malfeasance as to involve failure in the

performance of the required duties. 11/

30. "Misfeasance" and "malfeasance" are not involved in the

present case because these words require affirmative ac tions;

nonfeasance describes a failure to disclose or, more broadly, an

omission. 12/ Thus, the sole issue under "gross insubordination"

is whether Respondent's failure to file the self - reporting form

constituted an "intentional refusal to obey a direct or der,

reasonable in nature, and given by and with proper authority."

However, the self - reporting rule is not a "direct order" given to

Respondent personally; it is a rule applicable to all covered

employees. See Rutan v. Pasco Cnty. Sch. B d . , 435 So. 2d 3 99,

400 - 01 (Fla. 2d DCA 1983), in which the court noted that there

was no evidence that the teacher "ever refused to obey any orders

from anyone. In fact, he apparently never received any orders

regarding his conduct prior to his suspension."

31. As no ted above, 13/ Petitioner could have pleaded the

violation of the self - reporting rule as "just cause" for

termination without regard to "gross insubordination." However,

the adverse employment action must obviously be based on a reason

that is "just." In this case, Petitioner's appropriate

managerial employees possessed, from within a few hours after the

arrest, all of the information that would have been contained on

Petitioner's self - reporting form. Adverse employment action for

such a failure to comply with the self - reporting rule would not

be just.

RECOMMENDATION

It is

RECOMMENDED that the Sarasota County School Board enter a

final order dismissing the termination claims based on willful

absence without leave and just cause in the form of gross

insubo rdination for failure to self - report an arrest within 48

hours.

DONE AND ENTERED this 2 3 rd day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of December , 2014 .

ENDNOTE S

1/ "Instructional staff" includes school psychologists.

§ 1012.01(2)(b), Fla. Stat.

2/ "Just cause" is a broad concept that has not been exhaustively

defined by statute. See Dietz v. Lee Cnty. Sch. Bd. , 647 So. 2d

217 (Fla. 2d DCA 1994) (per curiam ) (Blue, J., concurring). An

examination of the grounds for the dismissal of an instructional

employee holding a continuing contract and an instructional

employee holding a professional service contract confirms the

distinction drawn by Judge Blue. Under section 1012.33(4)(c), an

instructional employee holding a continuing contract may be

dismissed during the term of his or her contract; "however, the

charges against him or her must be based on immorality,

misconduct in office, incompetency, gross insubor dination,

willful neglect of duty, drunkenness, or being convicted or found

guilty of, or entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving moral turpitude." By

contrast to this exhaustive listing of grounds for termin ation,

under section 1012.33(1)(a) and (6)(a), an instructional employee

holding a professional service contract may be dismissed during

the term of his or her contract for "just cause," which:

includes, but is not limited to, immorality,

misconduct in of fice, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34, three consecutive annual

performance evaluati on ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s. 1012.34, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication o f guilt, any

crime involving moral turpitude.

3/ In this case, Respondent reported for duty on August 20, a

Wednesday, but was taken into custody during the morning of this

workday. After Respondent failed to report for duty for the

succeeding three wo rkdays -- August 21, 22, and 25 -- Petitioner

declared an abandonment on August 25, presumably after

determining that Respondent had not reported for work earlier on

that day.

4/ Circuit court is the forum for determining whether probable

cause exists for a n arrest. The administrative forum lacks the

authority to conduct a parallel probable - cause proceeding, under

the guise of section 1012.67, with the attendant risk of a

contrary result. Instead, the administrative forum must accept

the probable - cause det ermination of the circuit court in the

underlying criminal case.

5/ T he Florida Supreme Court has stated:

In the past, we have defined "probable cause"

as a reasonable ground of suspicion supported

by circumstances sufficiently strong to

warrant a cau tious person in the belief that

the person is guilty of the offense charged.

Dunnavant v. State , 46 So. 2d 871 (Fla.

1950). The reasons cited by the police must

be sufficient to create a reasonable belief

that a crime has been committed. Florida

East Co ast Ry. Co. v. Groves , 55 Fla. 436, 46

So. 294 (1908). As long as the neutral

magistrate has a substantial basis for

concluding that a search would uncover

evidence of wrongdoing, the requirement of

probable cause is satisfied. Polk v.

Williams , 565 So. 2d 1387 (Fla. 5th DCA

1990). In the same vein, the United States

Supreme Court has noted:

The task of the issuing magistrate is simply

to make a practical, common - sense decision

whether, given all the circumstances set

forth in the affidavit before him, . . .

there is a fair probability that contraband

or evidence of a crime will be found in a

particular place. And the duty of a

reviewing court is simply to ensure that the

magistrate had a substantial basis for . . .

concluding that probable cause existe d.

Illinois v. Gates , 462 U.S. 213, 103 S. Ct.

2317, 2332, 76 L. Ed. 2d 527 (1983) (emphasis

added) (quotation marks omitted).

Schmitt v. State , 590 So. 2d 404, 409 (Fla. 1991).

6/ At hearing, Petitioner relied on recommended orders, which are

not list ed in section 90.202, Fl orid a Stat utes , as materials of

which the Administrative Law Judge may take official notice.

Dykes v. Quincy Tel. Co. , 539 So. 2d 503 (Fla. 1 st DCA 1989).

The Administrative Law Judge has addressed the corresponding

final orders, which are listed under section 90.202(5). See F la.

A dmin . C ode R. 28 - 106.213(6).

7/ The statute in this case was section 235.44, which was

renumbered as section 1012.67.

8/ Lexis contains no mention of this case, but the final and

recommended orders are on the DOAH official website.

9/ See preceding endnote.

10/ This citation is to the recommended order. The final order,

which was issued on February 14, 2014, is on the official DOAH

website and makes no material changes to the recommended orde r.

11/ A prior version of this rule, in effect through July 7, 2012,

defined "gross insubordination" as: "a constant or continuing

intentional refusal to obey a direct order, reasonable in nature,

and given by and with proper authority."

12/ See, e. g. , Johnson v. Davis , 480 So. 2d 625, 628 (Fla. 1985)

(dictum). As the Florida Supreme Court stated in Hardie v.

Coleman , 115 Fla. 119, 125 - 126, 155 So. 129, 132 (Fla. 1934):

. . . the Governor may suspend any officer

not liable to impeachment, for malfe asance,

misfeasance, neglect of duty in office,

commission of any felony, drunkenness or

incompetency, and for no other causes.

Malfeasance has reference to evil conduct or

an illegal deed, the doing of that which one

ought not to do, the performance of an act by

an officer in his official capacity that is

wholly illegal and wrongful, which he has no

right to perform or which he has contracted

not to do. "Words and Phrases, Webster's New

International Dictionary."

Misfeasance is sometimes loosely appli ed in

the sense of malfeasance. Appropriately

used, misfeasance has reference to the

performance by an officer in his official

capacity, of a legal act in an improper or

illegal manner, while malfeasance is the

doing of an official act in an unlawful

mann er. Misfeasance is literally a misdeed

or a trespass, while nonfeasance has

reference to the neglect or refusal without

sufficient excuse to do that which was an

officer's legal duty to do.

Neglect of duty has reference to the neglect

or failure on the part of a public officer to

do and perform some duty [126] or duties laid

on him as such by virtue of his office or

which is required of him by law. It is not

material whether the neglect be willful,

through malice, ignorance or oversight, when

such negle ct is grave and the frequency of it

is such as to endanger or threaten the public

welfare, it is gross. Attorney General v.

Jochiam , 99 Mich. 358, 58 N.W. 611, 23 L.R.A.

699.

13/ See endnote 2, supra .

COPIES FURNISHED:

Harvey Dorey

585 Alligator Dri ve

Venice, Florida 34293

Robert K. Robinson, Esquire

Kirk Pinkerton

6th Floor

240 South Pineapple Avenue

Sarasota, Florida 34236

(eServed)

Jordan L. Wallach, Esquire

Jordan L. Wallach, P.A.

Suite 900

1800 2nd Street

Sarasota, Florida 34236

(eServed)

Lori White, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231 - 3365

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eSer ved)

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written except ions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.